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The Richard McKee Act Is Now Law

Although he did not live to see it and would never have dreamed of such a development, the late Richard P. McKee has his name on the new law, just signed by Governor Jerry Brown, bringing transparency to the files of foundations and other nonprofit “auxiliary organizations” allied to the state’s public colleges and universities. McKee, co-founder and first president of Californians Aware, had an unrivaled history of activism to preserve respect for the open meeting and public records laws — by skillful jawboning, persistent surprise surveys, diplomatic advocacy and, when all else failed, personally financed and designed litigation, in which he usually prevailed. The McKee Act, generously given that name by its author, Senator Leland Yee (D-San Francisco) and its sponsor, the California Newspaper Publishers Association, is a fitting marker for a man whose lifetime career was in community college teaching, who policed his and other campuses for sunshine compliance, and who insisted that CalAware take CSU Stanislaus and its foundation to court for refusing to disclose the contract for Sarah Palin’s appearance there last year to mark the campus’s 50th anniversary. What the new law does and why it was sought is reported by Peter Velz for the Student Press Law Center.

After three years of legislative back and forth, Gov. Jerry Brown on Wednesday signed Senate Bill 8, subjecting foundations, bookstores and other auxiliary organizations throughout California’s public university system to open records requests.

The Richard McKee Transparency Act of 2011 was authored by state Sen. Leland Yee. Adam Keigwin, Yee’s chief of staff, said the bill started as a way to clarify the role “quasi-public” auxiliary organizations had under open records laws.

Keigwin said the law clarifies that the public can obtain correspondence, emails, letters, financial statements and contracts from foundations and auxiliary organizations at the University of California, California State University and the state’s community college system.

The legislation does, however, allow foundation donors to remain anonymous unless they receive gifts from the school worth more than $2,500. Donors can also become public if they enter into a no-bid contract with the school within five years of a donation or if they attempt to influence curriculum or university operations.

The bill has its roots in 2009 legislation that passed overwhelmingly, only to be vetoed by Gov. Arnold Schwarzenegger.

Yee revised and resubmitted the bill the following year addressing concerns brought up by the governor, namely the privacy of anonymous donors. The changes allowed anonymous donations unless donors received gifts from the school worth more than $500 for their contribution. Despite similar bipartisan support in the senate, Schwarzenegger again rejected the bill.

With a new governor in place this year, SB 8 was an opportunity to try again.

“We took a little bit different approach this year by creating essentially a mini public records act in the education code,” said Jim Ewert, general counsel for the California Newspaper Publishers Association and a supporter of the bill.

Ewert said one of the main changes was increasing the acceptable value of gifts an anonymous donor may receive to $2,500.

“It was that final piece that protected identifiable information about donors that apparently won the day,” he said.

Ewert called the compromises “reasonable” and said with the bill in place, “there’s going to be an attempt to pull back a lot of curtains.”

“Foundations only comprise about a third of the total number of auxiliaries on CSU campuses,” Ewert said, adding “bookstores, agreements between student body organizations, vendors, parking concerns, arena developments and vendors,” to the list of information now open to public records requests.

Erik Fallis, spokesman for CSU, said the system “is one of the most transparent, if not the most transparent, university system out there” and emphasized much of what people want from foundations and auxiliaries is already available through IRS 990 forms, public agendas and “subject to disclosure under non-profit rules or federal or state laws.”

In May, USC and CSU dropped their opposition to the bill once a compromise on donor privacy was worked out. Now that the bill has passed, Fallis said additional resources may be allocated to take on more public records requests.

“We’re going to work with our auxiliaries, certainly give them the information they need to comply with the law,” he said. “And we’ll look into ways that the auxiliaries might need support in complying with the law.”

Over the three years SB 8 and the two preceding bills were trying to address the issue, there was no shortage of controversy involving auxiliaries.

The most recent incident happened in 2010 when Sarah Palin was scheduled to appear at California State University Stanislaus during an engagement through the CSU Stanislaus Foundation. Inquiries by Yee and the press for Palin’s contract were denied by the auxiliary organization. A controversy erupted after Stanislaus students later found documents related to Palin the university denied it had, and a judge eventually ruled CSU acted illegally when it withheld the information.

The law is a boon to journalists and donors curious about where their money is going, Keigwin said.

“I’ve talked to several reporters who have been waiting for this law to go into effect for several years,” Keigwin said. “They basically have their … requests and are ready to hit ‘send’ on their computers.”

The legislation does not go into effect until Jan. 1, though Yee is urging UC and CSU to begin complying with requests immediately. Laws in Colorado, Georgia, Minnesota and Nevada also make university foundation records public, though to varying degrees.

“Finally there will be real transparency to UC and CSU, and we’re looking forward to seeing how these universities are running these organizations and where the money is going,” Keigwin said.